I. Introduction It is difficult to imagine many situations more stressful than the pressure felt by an innocent suspect being subjected to police interrogation for a serious crime. Any person in that situation faces multiple decisions. For nearly 40 years, the rules governing the use of evidence obtained through police investigations were fairly (but not entirely) straightforward. However, the recent the United States Supreme Court decision in Salinas v. Texas introduces a new level of complication that may change the way police conduct interrogations and the way evidence obtained in those interrogations is used in court. II. Development of the Modern Rules: “You Have The Right To Remain Silent” The Fifth Amendment to the Constitution states that no person “shall be compelled in any criminal case to be a witness against himself.” In 1965 and 1966, the U.S. Supreme Court decided the two cases that set the ground rules for the exercise of the Fifth Amendment privilege. The 1965 case, Griffin v. California, established that prosecutors were not allowed to comment on a defendant’s decision to exercise his or her right to remain silent and not testify at trial. In that case, the prosecutor argued that an innocent defendant would have taken the opportunity to testify at trial and that the defendant’s decision to remain silent indicated that he was probably guilty. The Supreme Court held that asking the jury to infer guilt from the exercise of the Fifth Amendment privilege placed an improper burden on the defendant’s rights and could not be allowed to stand. The conviction was reversed. As a result, the practice in New Hampshire and elsewhere is that juries are instructed that they may not hold the fact that the defendant did not testify at trial against the defendant. The more well-known case, Miranda v. Arizona, gave rise to the oft-repeated (but seldom understood) rights that we have all seen read to suspects in the movies. In Miranda, the Supreme Court found that police station interrogations occur in such an emotionally-coercive, police-controlled environment, that special rules were necessary to ensure fairness, protect against false confessions, and further the values animating the Fifth Amendment. The basic Miranda warnings state that a suspect: (1) has the right to remain silent; (2) that any statements a defendant makes may be used against him in court; (3) that the defendant has the right to a lawyer; and (4) that if the defendant cannot afford a lawyer, one will be provided to him or her by the government. The Supreme Court invented the Miranda warnings and required that suspects who are: (1) under arrest and therefore not free to leave police custody; and (2) subject to police interrogation, be advised of these rights before they can waive those rights and allow themselves to be questioned by police. Interestingly, the court-mandated warning does not advise defendants that their decision to assert their rights and remain silent cannot be used against them at trial. The rule prohibiting a prosecutor from commenting on a suspect’s failure to answer questions has generally (but not universally) been understood to apply to questions asked outside the trial as well. The decision not to answer police questions has thus typically been inadmissible as evidence at trial, and prosecutors have generally been prohibited from arguing to juries that a suspect’s failure to answer certain questions is tantamount to an admission of guilt. If you have been charged with a crime or believe your rights have been violated, you should consult an experienced criminal lawyer at Douglas, Leonard & Garvey, P.C. at (603) 288-1403 or fill out our online contact form for a case evaluation.